Law X.0

Fordham IPLJ Launches News Blog

The Fordham Intellectual Property, Media & Entertainment Law Journal (IPLJ) launched a web blog featuring short articles from IPLJ staff members written on topical IP, media, and entertainment law issues. Check it out. [JH]

Blogging and the Future of Legal Scholarship

There is a fascinating collection of essays on “The Future of Legal Scholarship” at the Yale Law Journal Pocket Part, all of which are written by law professors who blog. The essays explore the ways in which the online world is changing the nature of legal scholarship.

    

The essays are:

• Let the Law Journal Be the Law Journal and the Blog Be the Blog, by Prof. Ann Althouse (Althouse)
• Online Legal Scholarship: The Medium and the Message, by Prof. Jack Balkin (Balkinization)
• A Blog Supreme?, by Prof. Christopher A. Bracey (Blackprof.com)
• The Long Tail of Legal Scholarship, by Prof. Paul Caron (TaxProf Blog) 
• That's So Six Months Ago: Challenges to Student Scholarship in the Age of Blogging, by Prof. Stephen I. Vladeck (PrawfsBlawg)
• Law Reviews, the Internet, and Preventing and Correcting Errors, by Prof. Eugene Volokh (Volokh Conspiracy) 

I learned of them via this post by Prof. Vladeck at PrawfsBlawg. It is worth pointing out that the print version (pdf) of Prof. Vladeck’s article has 39 footnotes (including 2 citations to 3L Epiphany), while the digital version contains active hyperlinks and thus requires no footnotes at all.

Law reviews: “So…what’s it all for?”

UVA Law Professor Rosa Brooks said this on her blog:

In 1936, Fred Rodell famously declared that he would no longer publish in law reviews. In Goodbye to Law Reviews, (23 Va. L. Rev. 38 (1936)), Rodell issued his manifesto: "There are two things wrong with almost all legal writing. One is its style. The other is its content.... In the main, the strait-jacket of law review style has killed what might have been a lively literature. It has maimed even those few pieces of legal writing that actually have something to say."

As a junior professor, I dutifully churned out law review articles to fill my tenure file. Some of those articles, I think, may even have contained a few good ideas and a few good lines, but all of them suffered, to one degree or another, from the constraints of the genre. Worse yet, I'm fairly sure that practically no one outside my tenure committee and my mother has actually read the damn things (and I have my doubts about my mom). Not that this makes me unusual: the vast majority of law review articles are read by few people, and cited by even fewer. So... what's it all for?

That blog post of Prof. Brooks provoked an online debate, and was then picked up by the Wall Street Journal here. (I excerpted the article here.)

She said, “[T]he vast majority of law review articles are read by few people, and cited by even fewer.” A case in point is this practitioner I mentioned earlier here, whom I’ll quote again:

Blogs are better for me than L.Rev.s will ever be, in these ways:

·         I need speed. Often, we have a pending appeal that raises the same issues as a USSC case, so we need to do a supplemental brief, or adjust a brief-in-progress, and blogs that give us ideas are great…

·         I need easy-to-digest bites. Sorry, but we don't all have time to read your academic masterpieces.

·         I need a focus on what the law is or conceivably might be in my near future. I like insights into where the Supreme Court's jurisprudence is actually headed, not a Grand Unified Theory of what-might-be if 6 Justices retire and are replaced by Critical Legal Theorists or something.

·         I like being able to jump in discussions, and having other practitioners jump in as well….

So a professor doesn’t like writing law review articles, and a practitioner doesn’t like reading them. Furthermore, the professor writes about it on her blog, and gets cited by the Wall Street Journal.

The day after I first posted the practitioner’s comments above, I heard from him. Mr. Stephen Carney, who works in the Attorney General’s Office here in Columbus, somehow found out that I had quoted him on my blog, and wrote me a friendly and encouraging email (not during work-time!).

Now, I am not comparing my quoting of Mr. Carney to the Wall Street Journal’s quoting of Prof. Brooks. Despite my delusions of grandeur, I am very clear that 3L Epiphany is a minimalist enterprise. But my interaction with Mr. Carney is another example of the immediacy of blogs as compared to law reviews.

A professor writes on her blog, and very quickly a discussion ensues, which is picked up by the mainstream press. And I quote a practitioner’s comments on my little 3L blog, and hear from him (without seeking his response) the very next day.

These two examples together indicate the benefits of blogging. Blogs can provoke an online discussion and quickly get picked up by reputable sources like the WSJ. And blogs can stimulate instant communication in a way that traditional media simply cannot replicate.

To make one further point, seemingly unrelated but actually very relevant, it’s been awhile since I’ve listed locations of visitors to 3L Epiphany. I’m doing this for a reason, so bear with me. Here are some recent places where readers come from (some I may have mentioned before): Norway, Finland, Morocco, Belgium, Italy, Germany, France, India, Pakistan, Singapore, China, and Korea. Plus the Bahamas. I have also been visited by every state of the Union except Hawaii and South Dakota.

Why do I point this out? Because blogs can penetrate where law review articles and traditional scholarly forms cannot. Prof. Brooks said that “the vast majority of law review articles are read by few people.” But that is not true of blogs, including her own. And it is not even true of 3L Epiphany, regardless of its limitations.

My blog does not have a very high traffic rate, especially recently. But in the last two weeks I have been read by more people and in more places than will ever read my student note (except for the footnote located here).

All of this obviously does not mean that blogs are superior to law reviews in every respect. But there is no question that blogs provide impact, relevance and immediacy which law reviews lack by nature. And what’s true for some law professors and legal practitioners will become increasingly true for some law students as well.

Law Reviews Adapt to New Era (WSJ)

This article from the Wall Street Journal, Law Reviews Adapt to New Era, is a must-read regarding the transitional stage we are now in, as older forms of legal scholarship give way to blogs and online resources. Here are a few choice quotes from the article:

For years, publishing in journals has been a prerequisite to getting tenure or to moving to a more prestigious institution. And for just as long, scholars and laypeople have criticized the stultifying style of legal academic articles, which tend to be extraordinarily long (sometimes 100 pages or more), dense, and endlessly -- even sadistically -- footnoted.

But the most recent wave of criticism has been especially costly to the legal journals. More than any other time in the past, law professors are looking beyond law reviews, moving relevant and timely commentary to the Internet and the blogosphere.

...

The focus of much current scholarship -- theoretical work with no real application for judges, practitioners, or policymakers -- has reduced the audience for it outside the legal academy. Hard statistics on law review readership are hard to come by, but anecdotal evidence suggests that practitioners simply don't pay much attention to them these days.

...

The law reviews are also turning to another strategy -- moving content to the Internet -- to boost readership. The law schools at Harvard and Yale, for instance, have both introduced special web-based supplements to their print publications.

…

At the same time, some newer journals have jettisoned print publication altogether and are operating purely as online publications. Much like web-based publications outside of the law, they're geared toward briefer, more timely writings.

…

…These days, quite often a law professor will read, criticize, and even cite drafts of an article posted on SSRN before it appears in final form in a law review. The result is that law reviews are, in the minds of some, beginning to feel like yesterday's news.

The debate about law reviews isn't simply academic. Rather, the issue puts into question the role of what professors should do when they're not teaching. "Legal scholarship is at a crossroads," says Ethan Leib, a young professor aiming for tenure at Hastings College of the Law in San Francisco. "The question we're asking is: Is our job to advance knowledge through contributions to academic journals, or is it to contribute to the public conversation about law?"

Timeliness of Blogs for Legal Practitioners

At this moment there is a new US Supreme Court. That is, the current make-up of the Supreme Court has changed with the confirmations of Chief Justice Roberts and Justice Alito. There are nine justices on the bench, and it is an entirely new situation. This could lead to tremendous changes in the law, and in American society. 

But this Court could be a parenthesis. There is simply no telling how long the current make-up will last. It may be that another justice will retire very soon. Perhaps the Court as it is now will last for three months, and then a new retirement will be announced.

And by the time a law review article is written about the current justices sitting right now, and by the time it is edited and published, that article will be of minimal value to the legal practitioners who need to know what is happening in the law at this very moment. Again, this new Court could be a parenthesis, lasting a brief moment in time, and things could change very rapidly. This is just one example of how the traditional ways of writing about the law are of very little value to legal practitioners.

Suppose the Supreme Court hands down a decision on any issue, not just a major cultural one which everyone pays attention to, but a seemingly narrow technical one which may actually be of enormous consequence. How much value does a law review article about that decision really have, if it is published a year from now? By the time that article is finally published, the nature of the Court may have already changed due to a retirement and a new confirmation. And that Supreme Court decision which is analyzed by the article may already be undone, whether through being overruled, or interpreted narrowly, or amended through progeny. The article may be irrelevant at the date of publication. But postings on a blog can keep practitioners informed on a continuous, day-to-day basis.   

I am obviously not arguing for the demise of law reviews and law journals. They have their significance, worth, impact and value. One of the reasons I created “Footnote 123” was to see if old and new forms of legal publication can be blended successfully. I'm grateful that I'm on a journal, and in a law school, where there is a willingness to try something new, and the freedom to carry it out. I hope that one day my electronic footnote will seem like an obvious and primitive idea. Other law students should run with it and do something far more consequential.

But I will assert emphatically that blogs are superior to traditional means of legal scholarship in a multitude of ways. Perhaps not if you are a law professor, but definitely if you are a lawyer working in the real world, and if you are a law student preparing for practice. Real lawyers, outside the academic enclave, need to know what the law is right now. They need to know how the law changed yesterday afternoon. Not just at the Supreme Court level, but at the circuit, state and local level. They can’t wait a few months or even a year to read a law review article that tells them what they already know.

However, if an attorney reads legal blogs during the day, he can stay informed about contemporary legal developments that are directly relevant to his field of practice. He can read sophisticated but timely analysis of new cases and statutes that are important to him. This is true even if a blog post doesn’t yet count as “scholarship.”

(Scholarship for whom? Scholarship for what? If a blog doesn't count as “scholarship,” then perhaps we need to reconsider the definition of legal scholarship. I realize that law professors need to display their research, propose new ideas and reforms, describe long-term legal developments, etc. But law school is not primarily about training law professors, it's about training lawyers, and lawyers read blogs. Some lawyers even create their own, and benefit their entire profession. Perhaps that's not scholarship in an academic sense, but the value to practitioners may be greater.)

Are Blogs Superior to Law Reviews?

This practitioner commenting here thinks so. (His comment is in regard to reading law professor blogs, not maintaining a blog of his own.):

"Blogs are better for me than L.Rev.s will ever be, in these ways:

1. I need speed. Often, we have a pending appeal that raises the same issues as a USSC case, so we need to do a supplemental brief, or adjust a brief-in-progress, and blogs that give us ideas are great…

2. I need easy-to-digest bites. Sorry, but we don't all have time to read your academic masterpieces.

3. I need a focus on what the law is or conceivably might be in my near future. I like insights into where the Supreme Court's jurisprudence is actually headed, not a Grand Unified Theory of what-might-be if 6 Justices retire and are replaced by Critical Legal Theorists or something.

4. I like being able to jump in discussions, and having other practitioners jump in as well…."